MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
May 2, 2003
The Committee on Judiciarywas called to order at 7:49 a.m., on Friday, May 2, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Don Gustavson
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Mr. Jason Geddes (excused)
Mr. William Horne (excused)
GUEST LEGISLATORS PRESENT:
Senator Valerie Wiener, District No. 3, Clark County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sabina Bye, Committee Secretary
OTHERS PRESENT:
Jane Nichols, Ed.D., Chancellor, University and Community College System of Nevada
Treena Leonard, Citizen
Dorothy Nash Holmes, Program Coordinator, Mental Health and Program Services, Nevada Department of Corrections
Marta Hall, Academic Coordinator, Nevada Department of Corrections
Ernie McKenzie, Program Director, Adult Education Division, Carson City School District
Keith Rheault, Deputy Superintendent, Nevada Department of Education
Carl Shaff, Consultant, Nevada Department of Education
Debbie Cahill, representing the Nevada State Education Association
Jim Nadeau, representing the Washoe County Sheriff’s Office
Rick Loop, Assistant Court Administrator, Eighth Judicial District Court
Jim Werbeckes, representing Farmers Insurance
Nancy Hart, Deputy Attorney General, Office of the Attorney General
[The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]
A quorum is present.
Let’s start with Senate Bill 317.
Senate Bill 317 (1st Reprint): Makes various changes relating to incarcerated persons. (BDR 34-594)
Senator Valerie Wiener, District No. 3, Clark County:
[Introduced herself.] Today I appear before you to urge your support for Senate Bill 317. This bill is the end product of work done in the interim by the Governor’s Study Committee on Corrections. Four state legislators were members of that committee—Assemblyman Greg Brower, Assemblywoman Sheila Leslie, Senator Mark Amodei and myself. We, along with the other members of the committee, were appointed to that study committee and spent an extensive amount of time coming up with recommendations to the Governor on ways to improve the state corrections system. Toward the end of our working together as a study committee, we determined which bills might be appropriate for the legislative members to bring to this session. I chose to bring the bill that is before you today dealing with corrections education.
Senate Bill 317 represents that study committee’s interest in and commitment to improving corrections education and creating opportunities for inmates who will be coming out of the system. Senate Bill 317 creates an enhanced relationship between the Nevada Department of Education and the Nevada Department of Corrections.
In Section 3 of the bill, you will see that the Department of Education will consult with the Department of Corrections to adopt regulations to establish a statewide program of education for incarcerated persons. The Department of Education in consultation with the Department of Corrections will also coordinate and assist school districts in operating education programs for incarcerated persons. The statewide program may include courses of study for a high school diploma, basic literacy, English as a second language, general educational development, life skills, occupational skills, and post-secondary education.
The statewide program will not include general education or vocational education programs or training established by the Board of State Prison Commissioners.
The statewide program must establish standards for each course of study in terms of curriculum, qualifications for entry, and evaluation of incarcerated persons for placement. Also, the statewide program must establish procedures to ensure that credits earned in an education program operated by one school district can be transferred to another institution operated by another school district.
Section 4 of the bill creates the Fund for Programs of Education for Incarcerated Persons (FPEIP), which allows acceptance of donations, gifts, and grants from any source. Fund money must not be considered in negotiations between recognized employee organizations and the school districts or in any effort to reduce the amount of money that would otherwise be made available to programs for incarcerated persons.
The Department of Education is required to establish a formula for equitably allocating money from the fund to each school district operating a prison education program. The state board shall establish annually, as it has money to do so, a basic allocation to each school district operating a prison education program.
Section 5 allows a school district board of trustees, with the cooperation of the Department of Corrections, to operate a program of education for incarcerated persons in a facility or institution operated by the Department of Corrections in the county of the school district. A school district operating such a program shall comply with the Department of Education standards established for the statewide program. To receive an allocation from the fund, the school district must submit to the Department of Education an application to operate a program and a detailed budget for that program.
Section 6 allows the Board of Regents of the University and Community College System of Nevada (UCCSN), in cooperation with the Department of Corrections, to offer courses that lead to a post-secondary degree to incarcerated persons in a state corrections facility.
Section 7 addresses situations where the warden or facility manager might exclude an employee of the operating school district from the facility or institution. It provides for an interagency panel to address that expulsion. This panel includes the Director of the Department of Corrections, the Superintendent of Public Instruction, and the immediate supervisor of the excluded employee.
Section 8 allows the Board of Regents to provide tuition-free classes to incarcerated persons who take courses leading to a post-secondary degree if that inmate meets eligibility criteria for federal need-based financial aid. In addition, the Board of Regents may also waive registration fees for these incarcerated inmates. I have included a letter (Exhibit C) from Chancellor Jane Nichols supporting the bill, and she will come forward to speak to that.
An amendment in the Senate that affects Sections 10, 11, 12, and 14 of the bill provides for earning credits for educational achievement. The credits reflect which program the inmate is participating in. For earning a General Educational Development certificate (GED), the inmate receives credit for 30 days; for earning a high school diploma, 60 days; and, for earning an associate’s degree, 90 days.
You will also note changed language in Sections 9, 10, 11, 12, 13, 15, and 16. It is a modest change; this is an update. We didn’t know until we sat at the table that this particular section had language we found nowhere else in the Nevada Revised Statutes. This relates to the General Equivalency Diploma and has been changed because it is not anywhere else in the statute, and this reflects the accuracy of what that particular certificate is. It is now called, as elsewhere in statute, the General Educational Development certificate.
Senate Bill 317 reflects a change that is long overdue. It is the hope of the Governor’s Study Committee that with this legislation we will create an effective, fluid educational system producing opportunities for inmates to reenter their communities with education and vocational skills. This will provide them with opportunities for legitimate success, rather than illegal behavior and failure. We know that 95 percent of the inmates in our facilities will one day see the other side of the institutional wall. We want to substantially reduce the high rate of recidivism in our state. We want to rehabilitate inmates so they can be contributors to our communities, not just takers and victimizers. Senate Bill 317 will help us accomplish these goals.
It is for these reasons that I urge the Committee’s support of Senate Bill 317. Also, there is a friendly amendment coming today from Mr. Nadeau and I certainly encourage you to take a look at it. If the amendment does not jeopardize the efforts of the people who worked on this bill, I hope you will support that as well.
Chairman Anderson:
Senator, thank you very much for allowing us to take the bill into the Assembly Committee on Judiciary rather than to the Committee on Education, where it more properly resides. The topic of the bill and all of these witnesses would be more comfortable in that surrounding than in the Committee on Judiciary, but the reason the Chair reached out for the bill is because it became a vehicle for the other part of a problem we had with an Assembly bill.
Assemblywoman Buckley:
Thank you, Senator, for bringing this bill to us. My question is regarding the issue of waiving the tuition and registration fees; it looks like this was the amendment that the university system put on and was not in your original bill. I support education in prison because folks are coming out and spending time to get a GED, a college course, or career, which makes complete and total sense, but I am uncomfortable with waiving the tuition.
Jane Nichols, Ed.D., Chancellor, University and Community College System of Nevada:
[Introduced herself.] I am happy to address the question that has been raised related to tuition and fees. Historically in Nevada, the university and community college system has had a relationship with incarcerated persons to offer courses. In fact, for many years the tuition and fees for those courses were paid for out of funds that were related to the prison budget. For the last four to six years, those funds have not been available and we have not had a way to specifically offer courses to those prisoners who did not have other means to pay for the tuition and fees. Our campuses and our heaviest deliverers of those classes are Western Nevada Community College and the Community College of Southern Nevada and they have looked for other sources of funds—private sources. They have tried to find ways to offer those courses to the inmates. You may know that inmates are not eligible for Pell Grants for federal financial aid.
We did ask to be added to the bill in order to give us some way to do what we think is good public policy and be a cost savings to the state, to use the fee waiver as a mechanism to offer courses to those who are incarcerated, and to meet the federal financial aid guidelines. In other words, offer these courses to those who do not have family resources or do not have other resources of their own. This would not apply to those who might be incarcerated and have the ability to pay for courses.
It is not a broad, sweeping request. If you look at the national studies that have been done on recidivism and incarceration, the only hope these low-income inmates have is education. We find that recidivism is very closely related to their ability to get a degree. You will notice that the only courses offered are courses that lead to a degree; the program is not for someone taking an occasional course. This is for a student who is working toward a degree; once that degree is granted, the student is much less likely to return to prison.
Assemblywoman Buckley:
Are the prisoners eligible for GSLs, Guaranteed Student Loans, where you borrow the money at the lower interest rate?
Jane Nichols:
They are not eligible because the criteria are established at the federal level and they are not eligible for that program.
Assemblywoman Buckley:
I support the policy of having these courses and education in the prisons. I just don’t know how I could look at a constituent, a single mom putting her child through college, and say, “Hey, sorry, you who are doing everything right don’t get any free tuition help, but I am going to give it to a prisoner.” I am struggling with that. I don’t see how I could support it.
Jane Nichols:
We have suggested the fee waivers as the vehicle to do that. The possibility of a loan program is certainly not one that we would turn away from by any means; that certainly is a possibility that could be explored. Since it is a narrow focus, it would be an easier program to administer. We actually have a student, Treena Leonard, a former inmate, who can speak to that issue this morning.
Assemblyman Brown:
I have two separate questions. When I went to school, I was number seven of eight kids. We were low- to middle-income, but just close enough that if I stuck around during the summers I would not earn a Pell Grant. Once I started in college I never came home because my parents would claim me and I would not be able to receive that help. I look at this and I can’t imagine anyone who would not fall within the federal guidelines for financial need. Do you think we are going to have 98 percent eligibility under those guidelines?
Jane Nichols:
The income requirements for federal financial aid are very low and we would also be looking at the family. We have not done this in the past; we have not collected that data. My sense is one would probably be eligible for this kind of benefit; we do not have good data, though, so I could be mistaken.
Assemblyman Brown:
I am wondering about scope of offering in terms of classes and class population. Are we going to have two persons in a class, is this a distance-learning situation, or are we sending an instructor from Las Vegas to Ely to teach two students for a day or two? Is the cost of that instruction inordinately high? Could you give us an idea of how you contemplate doing that?
Jane Nichols:
I would like to address the post-secondary side. Remember for kindergarten through 12th grade it is a very different answer because it is a different situation. For the university and community colleges, we do have a threshold at which we can offer courses. We do not offer courses that do not make a certain enrollment and we offer them in our prisons in a variety of ways. For most of them close enough to Las Vegas or Carson City for an instructor to go to the prison, it is a classroom. We do offer some distance education courses, but those are very difficult to do. You are probably aware that our inmates do not have unfettered access to the Internet. Primarily these courses are delivered in person and within a class; it is not difficult to fill a class. If this is available, those who are in prison respond in an amazing way.
Assemblyman Brown:
And what is the scope of offering?
Jane Nichols:
Our focus is on getting an associate’s degree for these students. Our focus is actually on getting them to aspire to a bachelor’s degree. The courses offered start with general education and general skills and offer a range of courses to get them to an associate of art (AA) degree. That gives them the ticket, if you will, to begin at the university. We make sure that all of the courses are fully transferable to our institutions and lead to a degree offering.
Chairman Anderson:
Dr. Nichols, since we have you up here, let me ask you a question. Are these limited to either an associate’s or bachelor’s degree or would someone conceivably be able to pick up a master’s or even a doctorate?
Jane Nichols:
To my knowledge, we have not offered degrees at that level; these are so specialized. We don’t have that many prisoners with bachelor’s degrees so we have not offered those kinds of courses.
Chairman Anderson:
The only time these programs are going to be available is if they are in the pursuit of a degree, on a degree-track program? In other words, they can’t be taking a course just to take a course?
Jane Nichols:
That is correct.
Chairman Anderson:
I envision this could be a great way to pick up good time credit and keep a prison from doing other things, if that were the case.
Assemblyman Carpenter:
In reality, it enables those who do want a degree to hopefully get that degree. Is this what we are doing?
Jane Nichols:
That is correct. The demand is there. This is not a new program; it is simply a way to try to finance the program that in the past was not supported in any way. Again, it is just for those who want that degree to be able to pursue it.
Chairman Anderson:
Dr. Nichols, is there any other statement that you wanted to make?
Jane Nichols:
If I could, following on the heels of the questions about post-secondary education, we have a wonderful woman, Treena Leonard, who has participated in this program and would like to make a few comments to the Committee.
Treena Leonard, Citizen:
[Introduced herself.] I reside in Las Vegas, Nevada. Five years ago I did not have a high school diploma. I had no concept of higher education. My education stopped at my junior year of high school. During the period between age 18 and 21, I fell into a life that most of you would probably never want to see. I was not the person you would want living next door to you; I was a criminal. I was arrested and convicted for armed robbery, grand larceny auto, conspiracy to manufacture a controlled substance, forgery, and burglary. I was sentenced to 4 to 20 years at the Nevada Department of Corrections at the age of 21. I had no hope for anything and I felt my life was over. When I arrived at the prison, I had a wonderful opportunity to enroll in high school. Someone once told me that life is about chances and choices. I had blown my chances and now I had to make the choices.
I graduated from high school; the pilot program for the community college to come into the prison had just started. It was up and running and I didn’t have a lot of money. My mom didn’t have a lot of money; she is elderly and sick. The average job in prison pays anywhere from 10 to 15 cents per day, so if I wanted to save up to pay for my classes I would still be saving money. Fortunately, I was able to enroll with the help of my grandparents who saved and scraped and sent me $200 to enroll my first semester.
My first semester, I took five classes and got all A’s. After that I decided I was going to set a goal for myself. I was going to accomplish something other than racking up felony charges—I was going to get my degree. I began working in prison industries, which is only offered to 12 inmates out of 550 at the Southern Nevada Women’s Correctional Facility. I began earning minimum wage and paid for my classes. There are a lot of women who cannot pay for their classes who maybe have their GED and don’t have a choice but to work in culinary or cleaning the prison, making that 10 to 15 cents a day because it is what they live on.
Receiving and earning my degree was the greatest day of my life. I actually accomplished something. I have a lot against me right now because I am a felon, and I am not a one-time felon. I am broad spectrum and fall in every category; I am not going to be able to go into a casino and work. I would never expect someone to try to hire me. The only thing I have going for me is my degree. I am continuing with my education, and it is hard. People don’t want to rent to felons. People don’t want to hire felons. But, if you can come to them and tell them ”I have this, I have an associate’s degree; I am going to college; I am going to the University of Nevada, Las Vegas, to get my bachelor’s degree,” that says a lot. It says a lot about the state of Nevada, that they are willing to help inmates make a change, not give them a helping hand, but give them a hand up and tell them that this is what they can do.
I am very honored to be here today to speak before you and I urge you to continue to help. For all who have sat here, you have made decisions to help me get my associate’s degree and general studies degree, otherwise I wouldn’t have been able to get it. I do thank you and I urge this bill pass so funding can continue.
Chairman Anderson:
We surely want to encourage you. It takes a great deal of courage to face the impossible. I think we all recognize that and appreciate what you have done and how much you have accomplished. We wish you luck on your way.
Dorothy Nash Holmes, Program Coordinator, Mental Health and Program Services, Nevada Department of Corrections:
[Introduced herself] I am attempting to coordinate programs throughout our prison system. With me today is Marta Hall, who is our Academics Coordinator for the educational programs. Just briefly and to answer some of the questions that have been raised, Marta will give you more specifics about why this particular issue was brought to the Corrections Study Committee. We had fewer than 15 inmates actually complete AA degrees last year. The only way we are funding those programs at this time is either with those inmates who can afford it themselves or occasional federal grant programs. We have one program that allows some college tuition and fee funding for inmates under 25 with less than five years who are actually within a certain period of coming out of prison—in other words, the ones the federal government, deems perhaps there is still some chance to invest in. We had zero bachelor’s degrees last year. We don’t do master’s degrees; we don’t do anything above that. Inmates do that by themselves through correspondence; some of them do it in other states through correspondence.
In answer to Assemblyman Brown’s question—I don’t want to say “even the playing field” because we don’t believe that inmates should have all the opportunities that people in the free community have. We want them to have the opportunity to change; we want to present them with some basic opportunities. The single mom out there who has two or three jobs and is struggling to get the money for college is eligible for Pell Grants, federal loans, and other guaranteed programs. Inmates are not eligible for anything. A couple of sessions back, they were taken off the Millennium Scholarship Program—we don’t disagree with that at all. What we are saying is for those few inmates who are motivated enough to pursue something beyond, and this young lady is an example, we would like to present them with the opportunity even though there is not a large number of inmates entering these programs.
Our Horse Training Program at Warm Springs runs in cooperation with the BLM, the Department of Agriculture, and the Community College. It is a two-year program. The inmates come out with a degree from the university; they take animal husbandry courses and have gone to work at ranches and horse-training facilities. Those inmates are not coming back to prison. We have had a great deal of success in that program and they are learning skills and turning into a different kinds of people because of the combination of work skills and education we are able to provide with the university partnership—that is what we are looking at. I would like to ask Marta Hall to address some of the basic issues that prompted this bill to come forward.
Marta Hall, Academic Coordinator, Nevada Department of Corrections:
[Introduced herself.] I would like to add a few more comments regarding the college program. In 1998, we had almost no program for the inmates beyond the high school level. With the assistance of the community college system and a little funding from the federal government, we now have about 500 inmates enrolled. Most of them are paying their own way and it is getting more and more difficult for them to do that, but we highly encourage your support in continuing this program. I don’t want to see us go back to the pre-1998 level. In 1993, when we lost Pell Grants for incarcerated individuals, it took us five years to come back and find a way to provide funding again. I appreciate your help on this; it is a successful program and we want to see it continued.
Chairman Anderson:
I think it is interesting that we seem to be focusing only on the university side of this; I thought the purpose of the bill was the funding of the high school program. While I appreciate that we have arrived at that level, what about the original intent of where we are going with the bill? That is what we need to hear about too.
Marta Hall:
Yes, Mr. Chair, and I will go on to that now. We are asking for your support for Senate Bill 317, which requests that the 4 school districts and the nearly 60 teachers who serve our 8 major prisons develop and implement a corrections education system and become not only adult educators but correctional educators as well. Since the average age of an offender in Nevada is 36 years and the average sentence length is 2 to 5 years, it is imperative to focus on special needs of offenders by providing them with the secondary credential and a viable job skill prior to their release, with the ultimate goal of reducing recidivism. The correlation between education, employable skills, and lowering return rates is well documented in other states, as well as nationally.
Dorothy Nash Holmes:
If I might add to what Marta Hall said, the reason this bill came forward was to put a structure around an informal system that already exists. Many years ago the prison actually ran its own high school. That changed when the school districts in each county came forward and took up the challenge to help educate our inmates. However, there is no law on the books structuring that; each of the school districts operate in its own way and there is no reciprocity. For example, if an elective is not offered in Carson City but is offered in Las Vegas and an inmate transfers from one prison to the next, he is not given credit in his high school completion. We found a few issues like that which repeatedly came up. We tried to come to a solution and found that basically no one was in charge.
The Department of Education and the superintendent in charge of correctional education need to clarify who is in charge, see that education works with corrections; see that all school districts go to the Superintendent to request money, rather than battle for it, and have an application process in place, in other words, put an organized structure around a system that was being operated very informally. We are not here to displace teachers; the only time programs have been offered in our Department of Corrections was by Ms. Hall and her four teachers to fill in gaps where courses were not being offered by the school district. We are not here to displace secondary education; we are simply trying to put a structure around what already exists to make it work better.
There is a section of this bill that protects the teachers. We have had a couple of problems. For example: A teacher is on contract with the school district. If something happens and the warden wants to throw her out of the system because he doesn’t like how she is teaching or there is some compromise with an inmate, he can do that. There has been no recourse for that teacher, who is on a two-year contract with the school. Who has the authority since no one is in charge? Does the warden or the superintendent have the authority? There is no panel, no hearing method. This bill creates a protection mechanism for the teacher, it sets up a hearing process, and it decides how that situation is handled rather than somebody saying “get out, you can’t teach here anymore,” and the school district gets stuck honoring a two-year contract with perhaps a teacher they don’t have an opening for someplace else. That is one of the problems we have addressed. Transferability of issues and receiving and accepting grants are also problems. There is grant money out there we could have, perhaps as much as a million dollars in Title I funds, but no school district decided to go for it.
Chairman Anderson:
Is the high school teacher an employee of the Department of Corrections or of the school district?
Dorothy Nash Holmes:
The high school teacher is an employee of the school district; that continues to be the same.
Chairman Anderson:
If the teacher is an employee of the school district—if the contract is with the school district—then the removal of the teacher should be with the school district.
Dorothy Nash Holmes:
That is one of the issues that is addressed here. In the Department of Corrections and in our system, the warden and the Director of the Department of Corrections have the final say on employees and who has access because it is a security issue. This gives us the mechanism to create a panel composed of the superintendent of schools and the Department of Corrections together with the teacher to resolve the issue. We can’t say, “It is a security issue, you are out of here,” and they can’t say, “It is an educational issue, you can’t throw us out of here.” It is one of those issues without a resolution and this bill creates a vehicle to resolve those issues easily. That is why Debbie Cahill and the teachers association and the school districts are in support of this. I think this is one of the few times we are all in support of a single bill.
Chairman Anderson:
Mr. Horne, myself, and Mr. Carpenter from this Committee, and Assemblywoman Leslie and Assemblywoman Giunchigliani from the Assembly Committee on Ways and Means, recently visited the juvenile facility in Elko. We were surprised to discover, in the discussion with the principal of the high school, that it was the only educational institution in the state prison system that is not operated by a school district. The girl’s juvenile facility in Lincoln County in Caliente, is that a private institution?
Dorothy Nash Holmes:
That again is one of these issues; there has been no consistency. The juvenile system is not in the Department of Corrections, it is in Division of Child and Family Services and Youth Parole Bureau of the Department of Human Resources. What happens with the school district and state prisons has no correlation to the juvenile system or the youth training center, and that is part of the problem. Nobody is in charge; there is no consistency of standards. This will give the Department of Education and the superintendent [of schools] an opportunity to provide some consistency in all the programs. It has all been put together informally over the years with no real rules.
Chairman Anderson:
One of the problems the high school principal in Elko indicated to us was that he had to compete with the other superintendents in order to get dollars for his educational program. There is no mechanism to address his school’s educational needs and the state’s penal system students. We are going to be taking care of adults and we seem to be leaving out those juveniles in the penal system. I am a little concerned that we are going to treat adult inmates at a higher level than the kids. We could conceivably make a major difference when they are younger; we have to take care of both.
Marta Hall:
The federal and state law requires that juveniles under 17 years of age go to regular high school programming. I am not familiar with the funding because it is separate from the system I work in. However, we are talking about adult education for those who have gone beyond that level and are in the adult state prisons. We have almost 50 percent coming in under the eighth-grade school level and we have to provide for them. The funding is different; it comes through the school districts, but it is different category.
Dorothy Nash Holmes:
It may be that there is a need for another bill that addresses some of the juvenile issues. We are not privy to setting that out since it is not within our jurisdiction, but those are the exact kinds of issues that have prompted us to come forward with this bill. The four school districts operating prison schools for us have competed with each other in different ways for the funding. That is why we put an application process into this bill. The state superintendent must find some equitable way to distribute the funds. Those are the same kinds of issues that we are facing in the adult system. While this does not address the youth problems in the school system, we need to start someplace and I think it is historical that we actually all agree on something—the teachers’ association, the school districts, the state superintendent, and the Department of Corrections. All are coming forward to start to correct some of the problems; it will put in a structure and address some of those issues.
Chairman Anderson:
I applaud the effort and obviously the adult part needs to be taken care of. I am not pleased with, “Well, we are going to have to deal with those two juvenile facilities separately because they are not handled at the county level and we are not providing that same level of support.” I think the question is if we have them in the child service center or they are incarcerated in a state program, we need to make sure we are meeting our obligations.
Dorothy Nash Holmes:
Mr. Chairman, I totally agree with that, but at the Department of Corrections level we have no jurisdiction over the juvenile facilities. Whenever there was a problem at the Nevada Youth Training Center or at the Summit View Youth Correctional Center, we received many calls. We have no jurisdiction; it is not our legal statutory authority, so it may be that Willie Smith [Deputy Administrator, Youth Correctional Services] or Michael Willden [Director, Nevada Department of Human Resources] needs to be brought in to discuss this issue. We will do anything we can to give them some of the information we have gathered in our research; we simply don’t have the authority to go there.
Assemblywoman Angle:
I notice in your bill you mentioned literacy specifically. I feel there is a real lack in that area and wonder if this bill is going to help in that effort. I notice there is some funding attached to this; part of the adult education funding is going to be used within the correctional system—about 30 percent was named in the fiscal note. I wonder if these efforts are going to help with the funding and consolidation. If I am hearing correctly, this is a kind of consolidation rather than separate people doing their thing; we are all going to work as a team. If you could address that for me I would appreciate it.
Dorothy Nash Holmes:
Yes, part of our budget request was to include four literacy teachers who are now funded under a grant; that funding goes away in August. We had requested that be picked up by the General Fund. In the joint subcommittee, there was some thought to eliminate it because of the cost. A bill was passed by the 1993 Legislature for us to do the literacy program; Marta Hall started the program. At the present time, most of the school districts are not offering literacy—that is why we have the four teachers. We are doing a “teach-the-teachers” or “teach-the-trainers” type thing because the literacy teachers teach the inmates, who then teach other inmates, and the system goes on and on. Of course, we lose 4,000 inmates a year and we get 4,000 new inmates in, so the system has to be perpetuated.
Our budget is still before the other committee and is being heard, but there was a motion last week to fund one of our positions through the General Fund and to authorize the other three positions, provided we find the money in our inmate services account. Out of the 10,300 inmates in our prisons, almost a third are in basic literacy programs because they cannot function at the eighth grade proficiency level. Under Nevada law, they are not supposed to be going to a high school program, job-training program, or prison job if they haven’t received a GED or high school diploma. We have not enforced that law because we can’t—nobody would work.
More than 48 percent of our inmates come into prison with no GED or high school diploma; 43 percent are not literate at the eighth grade level; and some are not literate at all and can’t speak English. Our programs have been filling in those gaps. There is some hope because of the way our budget is being handled to fund one of the positions through the General Fund. With the other three, we have to scrape up the money through our “package policy” where the inmates’ families purchase things from a catalog store and send things in twice a year to the inmates; we get a little commission off that. We are looking for other ways inside our system to focus some of those monies to fill in that grant. Literacy is still a concern for us but the school districts can now teach literacy where they couldn’t before, and we are hoping they will also pick up that gap and start helping in those areas.
As Ms. Hall said, inmate students are not your typical high school students; they didn’t make it in high school when they were there. Forty-seven-year-old men don’t do really well with the same kind of high school math, reading, civics, and history classes that are offered to the traditional 17-year-old and under. The 17‑year-old and under have traditional high school, but we need the school districts to recognize that a correctional student is a different kind of student; they are beginning to teach and fulfill the needs of the inmates. We need to get them through basic education, whether it is high school or GED, give them job training, and get them out of prison so they can be productive again.
Chairman Anderson:
You will hear all this again in the Assembly Committee on Education. Ms. Nash Holmes, are Pershing, Carson, Clark, and White Pine the four counties? We don’t run them at the special program camps? [Ms. Nash Holmes indicated yes, those were the four counties.]
Ernie McKenzie, Program Director, Adult Education Division, Carson City School District:
[Introduced himself.] This has been a combined effort from the school districts in the state and it has been a good collaboration. Mrs. Angle, a couple years ago you were on the committees that were looking into the adult education. At that time, they were prohibited from offering literacy and high school diploma programs. You will notice that they mentioned literacy [in the bill], so the state can give us authorization to offer literacy classes because prior to this bill they were considered below high school entry level. Now we will be able to offer literacy classes. The Carson City School District supports the bill.
Keith Rheault, Deputy Superintendent, Nevada Department of Education:
[Introduced himself.] We are here to support the bill and are prepared to do the regulations. It will put the prison corrections adult education program in a formal setting; our staff has been working on this, and we are ready to go if the bill is passed.
Carl Shaff, Consultant, Nevada Department of Education:
[Introduced himself.] I would like to thank Senator Wiener for bringing this to the forefront. For the last year and a half, I have had the opportunity to work with a group of superintendents, school districts, and the corrections people. This is, to my recollection, the first time we have ever come to a consensus. We are in the process of forming the curriculum committees to get the curriculum in line so they are the same. It has been a very strong collaborative effort, we are in favor of it, and would like your support.
Chairman Anderson:
I hope in your discussions you might find room for the juvenile principals from both Caliente and Elko. They would appreciate having a louder voice at the table because they seem to be left out of the mix.
Carl Shaff:
Chairman Anderson, I will make a commitment and will certainly do that; I will work with both of those principals very closely.
Debbie Cahill, representing the Nevada State Education Association (NSEA):
[Introduced herself.] I want to thank Senator Wiener for bringing NSEA into the discussions on this bill. We have been plagued with the problems addressed in Section 7, where teachers were removed or their privilege to be on prison grounds was removed by the warden of the prison. This section of the bill provides for a hearing to be held and we are very pleased with that level of due process. If there is any appetite for an amendment on this bill, the only improvement that could be made would be that the affected person be given specific notice of the hearing. We are in support of the bill and pleased to have this section in the bill.
Chairman Anderson:
Did you raise that concern on the Senate side?
Debbie Cahill:
We submitted a rather complicated, long amendment to the bill to the Senate Committee on Judiciary, but they had no appetite for the amendment. We have reconsidered the amendment and have no desire to try to load this bill up with other amendments.
Jim Nadeau, representing the Washoe County Sheriff’s Office:
[Introduced himself.] I appreciate the opportunity to submit an amendment (Exhibit D). We discussed in a previous meeting a bill designed to streamline the release of inmates in an overcrowded jail situation. We have concurrence from all the courts in Washoe County and the Eighth Judicial District in southern Nevada on an amendment that basically would amend NRS 211.240 and break it up into two sections.
The first section deals specifically with city jails, and a new section would deal with jails operated by the sheriff. In Washoe County, the municipal, judicial, and district courts sentence prisoners to one jail facility for the entire county. What we are attempting to do is provide a mechanism that would streamline the release of inmates in the event of an overcrowded jail. Basically, if the jail becomes overcrowded and exceeds its maximum operational capacity, the sheriff would give written notification to all the courts that sentence to that jail. Upon receiving the notice, the chief district court judge would issue a court order outlining how the sheriff can release inmates in an overcrowded condition. This order would be ongoing but would be required by statute to be reviewed every 30 days to determine if the jail is still in an overcrowded situation, and that the mechanisms are in place and working appropriately. When the overcrowding emergency no longer exists, the sheriff would certify that fact to the courts he previously notified.
Chairman Anderson:
Let me explain to the Committee why I was hopeful to amend this into the chapter. The problem is twofold. In Washoe County, a single jail is utilized by Washoe County, the City of Sparks, and the City of Reno, and there is a lockup at Incline Village.
Jim Nadeau:
Actually, we have only “temporary” holding facilities at Incline Village, used for a very short duration.
Chairman Anderson:
Everybody else has moved to a single facility. When it is at capacity and the mechanism is in place, the sheriff notifies the judge of the district court, but the municipal court judges may not necessarily be following along.
Jim Nadeau:
For each inmate, under the existing statute, the sheriff is required to contact the presiding judge who sentenced that inmate to the facility to get permission to release that inmate. This would centralize it under the chief district court judge, with notification to the other court judges.
Chairman Anderson:
Conceptually, what is going to take place is the sheriff will notify the chief judges of the district court, the municipal court, and the justice court. All the district court judges will be notified for the next 30 days if there are people to be released; they will be released at the direction of the sheriff, with the judge’s approval.
Jim Nadeau:
They will be released under the parameters of the court order of the district court judge. He will set down the parameters for that release.
Chairman Anderson:
Every 30 days, the sheriff needs to “continue” the fact that the jail is overcrowded. In other jurisdictions where they have city jails, such as in Clark County where they have both city jails and a single municipal lock up, will the judges be able to continue to operate as they currently do?
Jim Nadeau:
Yes, that is correct. Currently in Clark County, the City of Las Vegas has a jail and several of the cities have their own municipal jails. But they are working under this type of system for their county jail, which is administered by the sheriff. Rick Loop from the Eighth Judicial District Court would be able to answer any questions applicable to that.
Assemblyman Carpenter:
We have the same situation in Elko. I know they have the same in White Pine. It just seems to me that seven consecutive days is a fairly short period of time. It also says that the judge “shall” issue that order. I think I have a problem with that; it says, “authorizing sheriff to release prisoners.” I feel we need to have a better handle on this than the parameters set forth. At least in the statute as it now is it talks about “prisoner eligibility” and what the priority must be; I guess the judge would take that into consideration.
Chairman Anderson:
I don’t think we are removing those criteria, Mr. Carpenter. They would still have to meet the same eligibility requirements.
Assemblyman Carpenter:
I think it would be in a city jail, but as I understand it, the judge “shall” issue the order if there are 7 consecutive days; I think that is easy to hit in some instances. In the rural areas, where we have a celebration coming to town, you might have 7 days where you would have too many people in there. I have a problem with that.
Jim Nadeau:
I had not really looked at those parameters, but that is completely acceptable to us. On the other side, where it is 7 days, we could go 14 days. The idea is not to make the duration of the overcrowding so long that the federal courts decide they need to step in and do the intervention. We felt there had to be a period of time short enough so there would not be concerns at the federal level. This was our effort to address that issue.
Assemblywoman Buckley:
I support the amendment, but I have the same concern I voiced before. I would feel more comfortable with some parameters on their release. After the last hearing, I spoke with Rick Loop, who gave me a copy of the Eighth Judicial District Court release order, and it was very comprehensive. It talked about priorities, looking at people close to their release date and who were non-violent. It had some good parameters that made me feel more comfortable and I was hoping that maybe they would be included. We spend a lot of time setting up penalties that we think are appropriate and then they are dashed. I can understand why you need some relief as they do right now in Clark County and other parts of the state as well.
Jim Nadeau:
It would not be a problem to include those parameters. In parts of Clark County they have set those parameters; we felt we would leave that discretion up to the court because they have more intimate dealings with the inmates who have been sentenced to jail in their districts. We did not seek to put that into the statute because we thought the courts would want that discretion. But we are certainly willing to include that if it is the pleasure of the Committee.
Assemblywoman Buckley:
Maybe that is okay and I will defer to the Chair because, on their own, the court did a really good order; I will go with the Chairman.
Chairman Anderson:
It seems that Washoe County has a unique problem in that it has a single jail and this creates a different scenario than what has been in place in the Eighth Judicial District, where they have multiple jails and have been able to work out a compromise. This statute has not given Washoe County a solution. As a result, we might see the Washoe County jail move under federal jurisdiction and I don’t think any of us wants to see that. That is the reason Clark County did what they did and the statute needs to be fixed. On the other hand, I don’t want to see the district court judges releasing municipal people because they are municipal people and not district court people, or the Justices of the Peace [overstep]. I think we have to set up a parameter where all judges are informed as to what is happening to them, and we give the district court judge a period of time to solve the jail overcrowding problem.
Jim Nadeau:
I think all the courts receive notice of an overcrowding situation. The courts can then sentence those people accordingly, realizing the parameters are in place for the release and they can use alternative methods in order to assist in relieving the overcrowding.
Chairman Anderson:
I don’t want to hold this bill up. I am going to ask my bill drafter to draft language. Mr. Nadeau, I would like you to cooperate with the bill drafter on this change so we can take care of Ms. Buckley’s and the Eighth Judicial District Court judges’ concerns.
Jim Nadeau:
I would be happy to do that.
Rick Loop, Assistant Court Administrator, Eighth Judicial District Court:
[Introduced himself.] The Eighth Judicial District Court does have an order in place with some of the criteria that you are concerned about. I have just talked to one of your attorneys and the Eighth Judicial District will work with Mr. Nadeau to get some criteria in place.
Chairman Anderson:
We need to get this in and over to the Assembly Committee on Education right away.
Assemblyman Carpenter:
I would think if we use 14 days it would help the rural areas. I don’t know about taking the discretion away from the judge that they “shall” issue that order; I would think if they could look at it, it would be better. I do think it would be important to have some parameters because it would at least give the rural judges a heads-up on what is happening in other parts of the state.
Chairman Anderson:
Is there a requirement for how long you can hold someone in jail without charging him? I thought it was 48 or 72 hours or something like that?
Jim Nadeau:
There is a 48-hour review—anyone who is booked into jail must have a probable cause hearing within 48 hours of being booked into the jail and then they must be arraigned. Once that determination is made, they go on to arraignment.
Chairman Anderson:
Isn’t 7 days a reflection of what is happening in one of the jurisdictional districts now? Is that part of the reason why we have come up with the magic number 7 rather than 14? I wouldn’t want us to be holding somebody for two weeks without that kind of hearing. Mr. Loop, this might be in your area of expertise.
Rick Loop:
I think the seven days applies to people who had due process and are being detained, and in that group of in-custody population you have a range of offenses which include misdemeanors, gross misdemeanors, and felonies.
Chairman Anderson:
I bring that forward to Mr. Carpenter because I know that if his jail suddenly has everyone arriving at the same time, would they be held for two weeks, or does the 48 hours apply before it came to an overcrowding condition?
Assemblyman Carpenter:
I think we are talking about two different issues; what I am concerned about is the overcrowding. I went through this situation when I was a county commissioner and we had the feds breathing down on us. If you do have them for 14 days and the sheriff has not been able to let them out, depending on the time the judge sentenced them, I think that is fine but I think 7 days is a little short.
Chairman Anderson:
Ms. Lang, in trying to help Mr. Nadeau and Mr. Loop reach a compromise, we will try to take into consideration a longer period of time than 7 days; I am not sure that 14 isn’t too long. Maybe 10 days would be good. Fourteen days is a long time, contiguous days, for a jail to be overcrowded.
Assemblyman Carpenter:
I think 10 days is better than 7 but not as good as 14.
Risa Lang:
I will work with them and try to come up with some language the Committee may consider. I just note in NRS 211.240 there is no period of time specified. Maybe when we discuss this and come up with some language, we can determine whether that would be something consistent in the statutes.
Chairman Anderson:
Maybe we aren’t going to specify the number of days. We will see what they are doing in the Eighth Judicial District. Let me close the hearing on S.B. 317.
We are going to take a look at S.B. 378.
Senate Bill 378: Revises provisions relating to cancellation or nonrenewal of policy of insurance issued to common-interest community. (BDR 10‑1053)
Jim Werbeckes, representing Farmers Insurance:
[Introduced himself.] Before you today is a very simple bill. S.B. 378 arose because of the situation Farmers incurred in Las Vegas this past summer. We elected to non-renew a homeowners association. Just prior to the cancellation, the homeowners association filed a Department of Insurance complaint citing NRS 116.3113, stating we failed to give proper notice. The association’s contention was that we failed to notify every unit owner and lien holder within the association. The Division of Insurance in Las Vegas also concurred and we were forced to stay on this risk for an additional year. The only way an insurance company can get off a risk with a homeowners association would be to withdraw from the market. Most homeowners associations don’t keep track of the individual lienholders on a property and if you look at the interest rates today, people are changing their lienholders constantly. The only way we would be able to get off a risk would be to withdraw from the market completely. That is not something that my company wants to do. We want to stay in business in this state; we don’t want to create another insurance crisis in this state.
Thus, we have S.B. 378. The bill requires an insurer, if they are going to cancel or non-renew a homeowners association, to notify the Board of Directors; we feel that is appropriate. We also feel if an insured unit owner or a lienholder of a unit owner has inquired about a policy or wanted a copy of the master policy, those individuals would be given a copy of the notice of cancellation or non-renewal. That is the bill in a nutshell. This legislation was changed during the last session in one of those large homeowners association bills and we never caught it. The associations are now bringing it to our attention.
Chairman Anderson:
So you are still going to be notifying people that have a security interest. However, in a large homeowners association you are only notifying the homeowners association—is that what is going to happen here? What is the practical application?
Jim Werbeckes:
The practical application is if we elect to non-renew a homeowners association, we are going to send the notice to the association, who represents all the members, and we would also send a notification to anybody in the homeowners association who had requested a copy of the master policy. If a particular unit owner asked for a copy of the master policy when the policy was written or later had asked to see a copy of it, we would notify them as well as any lienholder who requested a copy of that policy. The problem comes when we try to notify 500 unit owners—and we insure over 500 units—and another 500 lienholders; it is almost impossible to do that.
Chairman Anderson:
Even though the unit owners and the security holders may be dependent upon that notification and you are doing this 30 days ahead of time?
Jim Werbeckes:
Correct. We would notify the association and anybody who requested a copy of that policy.
Chairman Anderson:
So now they have to make you aware of their presence.
Jim Werbeckes:
Correct.
Chairman Anderson:
Thank you very much. Anybody else want to be heard on this simple, one-word change and deletion? Let me close the hearing on Senate Bill 378, and bring it back to Committee. Chair will entertain the motion.
Assemblywoman Angle moved to Do Pass S.B. 378.
Assemblyman Conklin seconded the motion.
The motion carried. (Mr. Geddes and Mr. Horne were not present for the vote.)
[Chairman assigned the bill to Mrs. Angle for reading on the Floor.]
There is a concur/non concur that is going to appear on the Floor today dealing with Assembly Bill 17, which is one of the death penalty bills. The Senate unanimously, both in Committee and on the Floor, decided to increase the amount of money that an appointed attorney would receive in a non-capital murder case from $75 an hour to $100 an hour. I was going to concur with it unless somebody felt that it was outrageous to actually pay an attorney what he was asking. [The Committee agreed to concur.] I will concur on behalf of the Committee.
Let’s turn to the Work Session Document (Exhibit E) and take a look at Senate Bill 40.
Senate Bill 40 (1st Reprint): Prohibits discharge of firearm from structure or vehicle under certain circumstances. (BDR 15-887)
Allison Combs, Committee Policy Analyst:
Senate Bill 40, the first bill on page 1 of the document, prohibits the discharge of a firearm from a structure or vehicle under certain circumstances. There was an amendment that was proposed on behalf of the Division of Wildlife officials to provide an exemption from the provisions for government personnel. They proposed adding that in with the existing exemption for peace officers and indicated the intent was to clarify that government officials or personnel involved in lawful activity wouldn’t be prosecuted under this section and provided an example of government personnel involved in wildlife programs who unintentionally shoot and kill an endangered animal, mistaking that animal for another animal that they were lawfully able to shoot. That was the proposed amendment on that bill.
Chairman Anderson:
Some of you may have received an e-mail from a gentleman (Exhibit F) who was concerned about air rifles and home firing ranges and that the bill prohibited discharge of firearms from a structure—that this language was too broad. Looking at the amendment to the bill, I think we are in pretty good shape. In reality, that would be a lawful practice. I am not convinced that the suggestions from the Department of Agriculture are needed (page 14). I don’t think we have to expand S.B. 40 in any other way; we can probably pass it the way it is. Anybody have any concerns?
Assemblyman Carpenter:
I have a question. I know that it is in the present statute, but on page 1, lines 4 and 5, it says, “who maliciously or wantonly discharges…or causes to be discharged…” What does that do with the “maliciously or wantonly?” Does that mean if you were just shooting out of the tent you could be charged with that when you didn’t do it “wantonly or maliciously?” Is this a drafting question?
Risa Lang, Committee Counsel:
I think Mr. Carpenter raises a good point. I am not sure but I think the point is that you could cause somebody else to do it. If it clarifies it, we could add “or causes to be discharged maliciously or wantonly.” Again, I think that is the intent of how it is written, to have it apply. But if it is not clear, we could try to ensure that it applies also to the second part of this.
Assemblyman Carpenter:
Thank you, Mr. Chairman, it would help the situation. I am just concerned that somebody who is out there target practicing or whatever gets caught up in something and they are really not causing any damage or doing anything malicious.
Chairman Anderson:
So, you want to add “maliciously and wantonly”? Is that what you are trying to do?
Risa Lang:
I think the way it is written, it is supposed to be “maliciously and wantonly discharges or causes…” so that “maliciously and wantonly” goes to both “discharges” and “causes” and I think that is probably how it would be interpreted. If you wanted to really clarify, we could repeat “maliciously and wantonly” before “causes” so it reads “maliciously or wantonly discharges” or “maliciously or wantonly causes.” I do think those terms were added where they are to modify both terms. It would not be difficult to just add those terms just before “causes” to be sure that it is interpreted as in fact applying to both.
Assemblyman Carpenter:
I would feel more comfortable with that and I think because of the situation and being familiar with the Fish and Wildlife Service that if we did add that it certainly would not hurt and it might strengthen it.
Chairman Anderson:
I just want to make sure that I am able to explain to the Senators why we wanted to do it double here. This would be an Amend and Do Pass motion.
Assemblyman Claborn:
That is only pertaining to S.B. 40? Not S.B. 199?
Chairman Anderson:
We are doing S.B. 40 only; we are doing S.B. 199 by itself.
Assemblyman Mortenson:
I think that amendment really does a lot for the bill, but what is the intent of this bill? What was it supposed to cure and aren’t there existing laws that would essentially take care of any of these situations addressed in this bill?
Chairman Anderson:
We heard this bill the other day. There was a lady who demonstrated that because of the way the language was written it was possible for somebody to shoot into the floor with a firearm and not be a felony act; it was a domestic violence type of problem. She was concerned that if you did that, firing from a moving vehicle, it was a felony and if you did it in the structure, out of a house, it was not; it seemed to be an inconsistency in our law. Had this been a felony, they would have been able to detain that person and possibly saved a life later because of the absence of the structure question.
Assemblyman Claborn:
I have a little scenario here related to not carrying a loaded shell in a barrel. You are in an automobile or whatever and there is no top on the vehicle. You are driving along and in front of you is the game warden. You know you have a shell in the barrel, so you automatically fire into the air. When you get to the game warden, who is about 40 feet from you, you don’t have a shell in the barrel anymore so you are not “illegal.” Is there anyway anybody could tell me how this is going to work?
Chairman Anderson:
I can’t think of anything else.
Assemblyman Claborn:
You can certainly hear the gun go off, but when he approaches there is no shell in the barrel, so there is no violation. Was that willful?
Chairman Anderson:
The current law would cover a situation like that because it was from a moving vehicle.
Assemblyman Claborn:
What if he stopped and then shot in the air? It wouldn’t be moving then.
Chairman Anderson:
It is still a motor vehicle regardless of whether it stopped moving. The current law would apply. This one only expands it to apply to a house.
Assemblywoman buckley moved to amend and do PASS S.B. 40 with the amendment to repeat the words “maliciously or wantonly” in front of the word “causes” on page 1, line 5.
Assemblyman Conklin seconded the motion.
the motion carried. (Mr. Geddes and Mr. Horne were not present for the vote.)
[Chair assigned the bill to Mr. Carpenter.]
Senate Bill 43: Adopts Uniform Child Witness Testimony by Alternative Methods Act. (BDR 4-378)
Allison Combs:
The next measure on the Work Session Document (Exhibit E) on page 2 is Senate Bill 43, which adopts the Uniform Law Commissioner’s Uniform Child Witness Testimony by Alternative Methods Act. There was some testimony that this measure was drafted and recommended by the Uniform Law Commissioners to provide procedures for taking the testimony of children in criminal or civil procedures and permitting a child for good cause to testify outside the courtroom and in the immediate presence of a defendant. There were no formal amendments proposed or raised during the hearing, although Senator Care noted that the age of the child witness under the bill, which is under Section 5, may be an issue considered for possible amendment if the Committee so chooses. Currently, the age of the child is referenced a child under the age of 13 years.
Chairman Anderson:
There was some indication we might want to raise the age.
Assemblywoman Buckley:
I like this bill a lot. I was not convinced by any of the arguments with regard to the criminal defense community. I like it the way it is. The only thing worth discussing is whether 13 is the right age. I heard from one of my colleagues “why not 14?” I also want to raise one other issue. I received an e-mail from someone who represents abused children who said, “We understand the concern in criminal cases which is affected more by your right of confrontation and the deprivation of someone’s liberty, but in a civil case, that was different.” They had a 16-year-old who was traumatized in a sexual abuse case and had to go to a civil court, not criminal, and was traumatized by it; it allows the use of alternative videotaping or videoconferencing to try to minimize the trauma. What they suggested for civil cases only was to raise it to under 18 or some variation of the same, just have it be a minor.
Assemblyman Conklin:
On the age of the child in this particular bill, I concur with Ms. Buckley. I think that 14 is a more appropriate age, in my opinion and my dealing with children. Also I would be willing to explore the option of raising the age and applying the statute to civil cases as well.
Assemblywoman Ohrenschall:
I too concur with Mrs. Buckley, but I think under 18 is the appropriate age to have the broad spectrum because there really can be trauma attached with any type of court-related hearing, civil or criminal. People in general, children in particular, youngsters, teens are not familiar with the locale, the procedures, or anything else. It is scary, even if there isn’t an emotional trauma preexisting in a person.
Assemblywoman Buckley:
The only reason I suggested 14 years old for criminal and a minor for civil court is because I don’t want to jeopardize the bill. I was afraid if we went too far on the criminal side, then maybe a lot of concerns remain from the criminal defense bar. I didn’t want to see the bill get in trouble because I think we all support it; that was my reasoning.
Assemblyman Brown:
I don’t know if I am willing to go that far; I think I can handle the criminal age amendment. I would prefer to see how this worked before we looked at an expansion into the civil.
Assemblywoman Ohrenschall:
I understand Mrs. Buckley’s thoughts and I would be very comfortable with her point of view if the Chair were willing to take a motion of Amend and Do Pass on that basis.
Chairman Anderson:
Juvenile statutes usually trigger at what age, 18? I thought there was a court determination below an age where a court can’t move you up to adult status—9, 10, some low number like that. Is it 14? Fourteen it is then.
Assemblywoman Buckley moved to Amend and Do pass s.b. 43 to change Section 5, line 18, the age from 13 to 14 years of age.
Assemblywoman Ohrenschall seconded the motion.
the motion carried. (Mr. Geddes and Mr. Horne were not present for the vote.)
[The Chair assigned the bill to Mr. Gustavson for the Floor.]
Senate Bill 48: Adopts revision of Uniform Child Custody Jurisdiction and Enforcement Act. (BDR 11-382)
Allison Combs:
The next bill on the Work Session Document (Exhibit E, page 2) is Senate Bill 48, which is also a Uniform Law bill and adopts the revision of the Uniform Child Custody Jurisdiction and Enforcement Act. Testimony indicated that the Uniform Law Commissioners recommended this measure to revise the 1968 Uniform Child Custody Jurisdiction Act, which has been adopted by every state. The revision brings the original Act into compliance with the federal Parental Kidnapping Prevention Act. There were a couple of amendments that were proposed. One was proposed during the hearing to Section 22 by Assemblyman Carpenter regarding the clarification of the intent of findings for courts of foreign countries; it would be to provide some amendatory language to that section to clarify the intent that Nevada courts are not required to defer to the findings of a court of a foreign country if the child custody law of that foreign country violates fundamental principles of human rights.
The second proposed amendment relates to the definition of the word “person” under Section 14 as it applies to provisions that would be added by this bill. Mr. Daykin proposed an amendment during the hearing but subsequent to the hearing he submitted a replacement amendment. The replacement amendment would simply replace the definition of the word “person” to specify that the word “person” includes a government, a political subdivision of a government, an agency or instrumentality of a government, or a political subdivision of a government. The language to be deleted is set forth there and also includes things like a “natural person” and other entities covered under other definitions of “person” in the statutes.
The third proposed amendment relates to applications for orders for protection against domestic violence. Section 46 of the bill will be amended; it authorizes registration of child custody orders from another state. The amendment would specify that an order for protection against domestic violence issued by a court in another state or jurisdiction is registered under Nevada law and is not subject to the provisions of Section 46. That would clarify how various laws would interact as far as the registration of these types of orders.
Chairman Anderson:
In addition to the handout, there is an e-mail (Exhibit G) that came to Ms. Combs and myself. It would appear in subsequent examination that is probably not needed. Ms. Buckley, do you want to address the amendment of Section 46 of the bill?
Assemblywoman Buckley:
Yes, thank you, Mr. Chair. My concern was in Section 46. As I understand it, if a domestic violence victim was forced to flee, they are allowed to register their protection orders without giving notice to the abuser that they have left the jurisdiction. This is in that rare case where an action is filed and the stalking is so severe that they have actually flown the jurisdiction, but they have registered with the courts and the police and they all know where they are. So the proposed amendment was to not change this particular state of affairs to provide protection to the domestic violence victim. I see Nancy Hart also submitted an e-mail (Exhibit G) on the same issue and perhaps a way to handle that as well. I have not had a chance to read this yet and don’t know how they interplay, but it is an issue that is raised.
Allison Combs:
Nancy Hart is here and I will certainly defer to her, if she would like, but if I could explain. She asked for some review to be sure that the statute doesn’t interfere at all with the Violence Against Women Act (VAWA), and the e-mail indicates that the bill would not conflict with VAWA and that Section 46 would be a good amendment to help clarify that. She raised an additional amendment as a possibility, but upon subsequent examination that additional amendment is already taken care of in existing law.
Nancy Hart, Deputy Attorney General, Office of the Attorney General:
[Introduced herself.] If I can clarify a little bit, Section 46, as Ms. Buckley points out, concerns registration processes for custody orders from other states. The VAWA, which receives federal funding for the state of Nevada, requires that we guarantee that a person who has a protection order against domestic violence not be required under law when they register their foreign document to notify the adverse party. Nevada Revised Statutes 33.090 provides that if you register your protection order against domestic violence, which may or may not contain a custody provision, you are not required to notify the adverse party. That complies with the VAWA.
Section 46 in this bill is an optional registration process; that is why it does not violate the VAWA. Someone coming from out of state with a custody order doesn’t have to take advantage of the registration process. If they do, however, under Section 46, notification would be required. What would be helpful is for Section 46 to clarify that if it is a custody order within a protection order against domestic violence, those custody orders should be registered. For purposes of registration, they should be treated under NRS 33.090 and not pursuant to this section so you would not have a case where someone would come from out of state with a custody order protection order against domestic violence and then be required to register pursuant to Section 46, which would require notification of the adverse party.
It would really be a simple clarification that a court shall, for purposes of registration only, defer to NRS 33.090. It is important because the custody provisions themselves are issued pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) or Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in this case. You don’t want to say that custody provisions in protection orders are not subject to these overall provisions; you just want to say that for purposes of registration they will be registered under NRS 33.090.
Assemblywoman Buckley:
While it is a little legally obtuse, I completely agree and would concur with Ms. Hart on the clarification. It really comes down to even though registration of the custody order is not mandatory, if you do it you will give notice to the abuser and that reverses our good status quo now. I think we want to keep the provision but add an amendment to clarify that when it is a custody order our existing scheme of protecting the victim will stay in place.
Chairman Anderson:
We want to clarify on page 4, Section 3, which is the proposed amendment by Mr. Carpenter that we are going to clarify that a court of this state need not apply for the provisions of this chapter if the child law of a foreign country violates fundamental principles of human rights. We are going to try to clarify that area and also clarify Section 46.
Assemblywoman Buckley:
I would move that we Amend and Do Pass Senate Bill 48.
Chairman Anderson:
Conceptually, we are trying to clarify Sections 22 and 46 of the bill.
Assemblywoman Buckley moved to Amend and do pass s.b. 48 with the amendments being those contained in paragraphs 1 and 3 of THE Work Session Document.
assemblywoman ohrenschall seconded the motion.
the motion carried. (Mr. Geddes and Mr. Horne were not present for the vote.)
[The Chair assigned the bill to Mr. Sherer to present on the Floor.]
Senate Bill 55: Revises provisions governing power of settlor and beneficiary of trust to alter certain statutory duties, liabilities, privileges and powers of trustee. (BDR 13-874)
Allison Combs:
Senate Bill 55 is the next measure on the Work Session Document (Exhibit E, page 3) and it revises provisions governing the power of a settler and a beneficiary of a trust to alter certain statutory duties, liabilities, and privileges with regard to the trustee.
Chairman Anderson:
Let’s skip this one. We had a lot of trouble with it before.
Allison Combs:
Subsequent to the hearing, the Committee received a letter with some concerns on the bill from Don Ashworth, Probate Commissioner for the Eighth Judicial District Court, and from Gardner Jolley, an attorney in the probate area, that the Committee may want to review (page 15).
Chairman Anderson:
Do read it and at the end I am sure you will have some of the same levels of concern. If you want me to put it in the next work session, please bring it to my attention because it is not my intention for us to ever see it again. It is not likely we will see a revisit of this bill.
Senate Bill 70 (1st Reprint): Increases amount of homestead exemption. (BDR 10-15)
Allison Combs:
The next bill in the Work Session Document (Exhibit E) is Senate Bill 70 on page 4. The measure increases the amount of the homestead exemption from $125,000 to $200,000. Some amendments were submitted subsequent to the hearing from Assemblywoman Buckley regarding additional exemptions designed to protect various property during a bankruptcy proceeding. Attached on the pink document (page 17) is a list of the suggestions for the Committee’s consideration for revision and the Nevada exemptions.
There is also another one in addition to the ones listed on the three pages to provide an exemption for automobiles in the amount of $18,000. There may be a few on the pink chart, such as the unemployment compensation that may already be covered in existing Nevada law. I note that for future staff reference, depending on how the Committee decides to go forward.
Chairman Anderson:
Let’s take a look at S.B. 70, which raised the land exemption from $125,000 to $200,000. Ms. Buckley wisely indicated that you might want to take a look here and thus we see these other choices.
Assemblywoman Buckley:
I support the original bill. It raises the issue of what should be exempt from your creditors. The usual policy is that you try to exempt the basics so someone can go on with their life. After the hearing, I was concerned because the other parts of the bill that had the rest of the exemptions had not been updated in quite some time. There is now pending at the federal level a new bankruptcy overhaul bill and it has been pending the last couple of years. It has been pushed by the credit card companies to make it more difficult for middle‑income people to be filing for bankruptcy. During the interim, I met with the new bankruptcy professor at the William S. Boyd School of Law, University of Nevada, Las Vegas, who said, “Every state should be looking at their exemptions from creditors in light of this bankruptcy code because the common word on the street is that middle-income people won’t get any bankruptcy protection anymore, it is gong to be so onerous.” So, after the hearing, with the permission of the Chair and the concurrence of Mr. Brown, I sent an e-mail to the bankruptcy professor, Marjorie Gyman, an excellent bankruptcy attorney in Las Vegas, and I said, “If anything needed to be adjusted to be fair, what would it be?” and I received this breakdown (Exhibit E).
In reviewing it, I like all of them. I was a little concerned about the second one, raising retirement accounts from $500,000 to a million. I thought $500,000 was probably okay. You can only have a car worth $4,500—there isn’t a car worth $4,500 that runs anymore. This has not been adjusted for inflation in a number of years. The professor suggested levels based on the bankruptcy code that is currently in place, such as household goods being $8,600 instead of $3,000; I think these are all good suggestions.
Chairman Anderson:
I would think that the household goods of $8,600 is a little low. It seems to me $10,000 would not be out of line. Other than that, I don’t have any problems. Ms. Lang, is this going to cause us a problem here—the veterans benefits, disability, illness, crime victim’s reparation award, life insurance and the other items?
Risa Lang:
No, I think we can work with this and, as Ms. Combs stated, there may be one or two already covered so to the extent they are covered we won’t include them. But in concept we could take this and put it together.
Assemblywoman Angle:
As the bill stands without any amendments, it is a pretty simple bill and I was just wondering if we had consulted with Senator O’Connell. I know she brings this to us every year and this looks like something that might get passed this time. I am wondering if she concurs with these amendments we are speaking of today?
Chairman Anderson:
What we are trying to do is to move it in this first work session. We just received this yesterday and I was trying to get it into this Work Session Document (Exhibit E). I think it is going to be in bill drafting for a while before it comes forward as a final amendment. I don’t want to spring it on her as a surprise. I think it is the will of our Committee to update it. We would like her concurrence that this is a good idea. Mrs. Angle, the answer to your question is, “No, we haven’t.” Did you have another question?
Assemblywoman Angle:
I have no more questions. I like the bill the way it is, raising the household homesteading provision; I would just hate to jeopardize this bill by adding to it.
Chairman Anderson:
I did indicate at the time of the hearing and to the Senator that we were holding it because we were looking at the other ramifications of the bill.
Assemblyman Mortenson:
The older people get, the more household goods they accumulate. I would say at this point what I have inside my house is worth more than my house. I would like to see the household goods raised to at least $10,000.
Chairman Anderson:
I don’t think you get to protect every asset and every work of art you have in your home if you go into one of these situations; it is because you have not been able to meet your fiduciary responsibilities and you may have to sell off some of your assets.
Assemblyman Brown:
I am not sure what we are implementing. I know we have the list of suggested new exemptions—were we going to go through each of them or discuss the amounts? For instance, I think I would stay on the $500,000 in retirement accounts; I like the $10,000 on the household; I think on the vehicle $18,000 is a little generous, but I’m comfortable with the $12,000 to $15,000 range. Under the suggested new exemptions, I think I see some of those included in the statute.
Assemblywoman Buckley:
This pink document came from Professor Markell. Our legal staff mentioned at the beginning that a couple of those items are already in the statute.
Chairman Anderson:
What I was going to suggest was move the household goods to $10,000, leave the retirement account at $500,000, and where the other suggested exemptions are, if currently in the Nevada statute, have Research update this. Relative to the motor vehicle, do as Ms. Buckley suggested and use the $18,000 value. I don’t know about the $3,000 difference—$15,000 is fine? Okay, $15,000 is good.
The Chair will entertain an Amend and Do Pass motion on S.B. 70. Recognizing Mrs. Angle’s concern if this bill does pass, we ask Mr. Brown and Ms. Buckley to spend a few moments with Senator O’Connell explaining we are trying to help her, not hurt her.
Assemblywoman Angle:
I am going to abstain on this vote.
assemblywoman ohrenschall moved to amend and do pass s.b. 70 with amendments as outlined by Chairman Anderson.
assemblyman mortenson seconded the motion.
the motion carried with assemblywoman angle abstaining. (Mr. Horne and Mr. Geddes were not present for the vote.)
[The bill was assigned to Mr. Claborn to read on the Floor.]
Senate Bill 91 (1st Reprint): Removes element of knowledge from crime of selling, giving or furnishing alcoholic beverage to person under 21 years of age. (BDR 15-319)
Allison Combs:
Senate Bill 91 is the next measure on the bottom of page 4 of the Work Session Document (Exhibit E). It removes the element of knowledge from the crime of giving, selling, or furnishing alcoholic beverages to a person under the age of 21. There was some concern raised during the hearing regarding the language on page 2 under Section 1, subsection 3, with regard to providing an exception to the complete defense to the crime and the complete defense does not apply if one document shown was forged or altered and also under the circumstances a reasonable person would have known or suspected that the document was forged or counterfeit. We haven’t received any written amendments concerning this issue since the time of the hearing.
Assemblyman Carpenter:
I did have some concerns and still do. I talked to a number of people and could not get any consensus. Law enforcement gave me their first language and it seemed to me it was about the same as what is in page 2 in [Section] 3 without (a) and (b). The retail people want to take (a) and (b) out. It seems to me what it does is give a complete defense in one section and then (a) and (b) take everything away. What we are trying to do is to make sure the clerks look at an ID card and be satisfied that it is not an absolute counterfeit; we have examples of how the cards should look—for young kids, it is a side view. Our cash registers are programmed so that when the cigarette sale is rung up, it gives you the date you need to look for on the card; when you sell liquor it gives you the date you are supposed to look up on the card—the date that is on their identification. I think what we want to do is to make them look at that card, look at the date, and make sure everything matches—that they are 21 years of age, or in the case of tobacco, 18 years of age. It seems to me what this is doing is taking away the “defense” with the language that is there. I could not really find any consensus on it, so I reiterate my concerns.
Assemblyman Sherer:
I agree with Assemblyman Carpenter. What our cash register does is prompt you to put the date in that is on that ID, so it is mandatory that you look at the ID. Some of the people are 60 or 70 years old and you put a date in, but it is mandatory that you card people 30 and under. It is on the receipt that you looked at the ID—it is your way of protection. At the same time, there are many different things out there; we have a lot of people coming in from foreign countries, or some circumstances that are different. I agree with Mr. Carpenter on the (a) and (b) sections.
Assemblyman Conklin:
I have a concern on the second page, lines 20 through 23. On line 21, it says “or suspected” and to me that is a rather significant gray area. I would like to see that stricken. The language would then read, “if a reasonable person would have known.” If somebody comes in with an ID from California and it is a male, 40 years old, and there is a female at the counter buying beer who looks 12, a reasonable person knows that ID is not appropriate. You get into the area of “suspected,” and that storeowner and store clerk have an option to sell or not to sell to them. That language is a little broad and I like the language in [Section 1] subsection 3 at the top of the page; if that section doesn’t apply, I think it needs to be tightened up under paragraph (b), subsection 3.
Chairman Anderson:
If I were to solve the problems of Mr. Sherer and Mr. Carpenter we would Amend and Do Pass eliminating sections (a) and (b) from [Section 1] subsection 3, page 2, lines 15 through 23 of the bill. I don’t know if that takes care of the concern. I don’t know if the bill could stand-alone after that; it would be up to the bill drafter.
Assemblyman Sherer:
I think the biggest thing is that we are checking the ID; at least get a look at the ID and make that difference. I think if we accomplish that, it is a great accomplishment. There are programs that are mandatory for your employees to go through to learn about selling alcohol. If you sell it to somebody who is drunk and they go out and get into an accident, you are responsible for that person; there are a lot of issues that come into play.
assemblyman Sherer moved to amend and do pass s.b. 91.
assemblyman carpenter seconded THE MOTION.
Chairman Anderson:
I guess we would be going from line 13 through 23, is that what you are looking for, Mr. Sherer? [Mr. Sherer confirmed.] On the Sherer-Carpenter motion to Amend and Do Pass S.B. 91, the amendment being the elimination of Section 1, subsection 3, from the middle of line 13, at the end of the period there, “the complete defense set forth and this subsection does not apply to,” and the subsections (a) and (b) at the end of line 23 and the cleanup language in order to make it fit correctly is necessary to make subsection 3 fit as a whole. Ms. Lang, is there a problem here?
Risa Lang:
There is no problem, Mr. Anderson.
Assemblyman Conklin:
I can’t support the bill if we take out (a) and (b). In Section 1, subsection 3, where we are asking him to check an ID, it is a great thing. Paragraphs (a) and (b) give law enforcement an opportunity to at least prosecute those who wantonly don’t pay attention to the ID. We will be saying, “Everybody has to check, but once you check you are free to sell to whoever you want.” I don’t think that is good public policy and I won’t support this bill.
Assemblywoman Buckley:
I understand the concerns because we all want to try to crack down on these underage purchases. The reason I am not as concerned and plan to support it with the amendment is because we had “knowingly” in there and Mr. Graham, as I recall, in the testimony said, “Yes, once in a while, we use a reasonable person standard.” Generally, in criminal law you are depriving someone of his liberty, so it has to be “knowingly.” Negligence is great for civil liability. You can be sued, but not for criminal liability. So I feel we are already out on a limb and I think the best way to lend it more weight is to check their ID and be sure they are over 21 from the ID itself. Some kid might get a fake ID, and then you get into the gray area. Did the person know it was fake? What if it was a sister and they were two years older and kind of looked alike? Are you going to put the criminal liability back on the clerk? I think there are legitimate concerns about taking away those couple of cases where maybe it was clear; but with the gray area, when it is not clear, coupled with criminal liability, there are a lot of civil remedies available for those cases. I think it is a better balance in light of all the complexities and the gray issues.
Chairman Anderson:
I am not entirely happy with the complete removal of (a) and (b) and I am kind of curious as to how they are going to make sure that the clerk has followed through on his responsibility to check on that. I think Mr. Conklin brings up a good point.
Assemblyman Brown:
I think there is a sufficient safety measure in subsection 3 even with the deletion of (a) and (b) because it states on line 10, “That which is presented to the seller of the alcohol or tobacco must indicate that the person to whom the alcoholic beverage was sold, given, or otherwise furnished was 21 years of age or older at the time.” There has to be a match. I don’t believe that the complete defense is in play if the storeowner can’t show it was a match. I agree with Ms. Buckley from that point on, if you are getting into counterfeit and things like that, we are into a gray area that may be problematic but it has to match for the complete defense to kick in. I am satisfied with the deletion of (a) and (b).
Assemblyman Gustavson:
When I first read this bill, I read Section 1, subsection 3, without (a) and (b) and I was okay with that, but then I read (a) and there was a problem without (b). I don’t really have a problem with (a) and (b) remaining in the bill. It may be diminishing the bill by taking them out, but I am not sure. Either way is okay with me, but I prefer (a) and (b) to be in there.
Chairman Anderson:
There is one bill that we need to do today dealing with health care issues and I need to get it out. Let’s pull this bill back. Mr. Sherer, I would ask you to withdraw your motion.
[Mr. Sherer withdrew his motion. Mr. Carpenter withdrew his second.]
The bill that we need to move along is a bill that is on its way to Assembly Committee on Health and Human Services and we gave it a temporary stop. Senate Bill 94 had a simple solution that we tried to do the day we received it. Ms. Combs, please explain.
Senate Bill 94 (1st Reprint): Provides for medical treatment in medical facility other than hospital under certain circumstances for certain allegedly mentally ill persons and for medical treatment for certain persons who are under influence of controlled substance. (BDR 39-745)
Mr. Chairman, you are right on target. The proposed amendment deals with the issue of civil immunity for private agencies, which is on page 3, subsection 4, of Section 2 of the bill. The proposal is to simply delete that subsection that provides for the civil immunity for private agencies (Exhibit E, page 5).
Vice Chairman Oceguera:
I must have missed that day, but it seems to me that this would defeat the purpose of the bill; you have to show gross negligence. The folks in the fire department, ambulances, and such would be covered under their sovereign immunity of $50,000, but if you take out the section on immunity, the private ambulances won’t transfer people to these mental health facilities, they will go straight to the hospitals because they will fear liability. This seems to me to defeat the whole purpose of the bill.
Chairman Anderson:
This was added to the bill on the Senate side and really was not part of the original intent. It gave the ambulance companies a broader spectrum with the level of immunity than they would currently enjoy. This was apparently the compromise they finally agreed to; this is what we had suggested in the first instance.
Assemblyman Mabey:
Like Mr. Oceguera, I have similar concerns. Did the facility where they are going to be transported agree to the amendment also?
Chairman Anderson:
They were asked to work out a compromise. Ultimately, they agreed this was what they were going to do.
Assemblyman Mabey:
I will be on the next committee where it is heard and I will support it, but I have some concerns.
Assemblyman Brown:
Like Mr. Oceguera, I believe I was absent on the day of this hearing. I would abstain at this point, but I don’t wish to hold up the bill.
assemblywoman buckley moved to amend and do pass s.b. 94.
assemblywoman ohrenschall seconded the motion.
the motion carried with assemblyman Brown and assemblyman gustavson abstaining. (Mr. Horne and Mr. Geddes were not present for the vote.)
[Chairman Anderson will take S.B. 94 on the Floor.]
The meeting is adjourned [at 10:34 a.m.).
RESPECTFULLY SUBMITTED:
JoAnn Kula
Transcribing Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: